As filed with the Securities and Exchange Commission on January 14, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ArTara Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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20-4580525
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1 Little West 12th Street
New York, New York 10014
(Address of Principal Executive Offices) (Zip Code)
Proteon Therapeutics, Inc. Amended and Restated 2014 Equity Incentive Plan, as amended
ArTara Subsidiary, Inc. 2017 Equity Incentive Plan
(Full title of the plans)
Jesse Shefferman
President and Chief Executive Officer
ArTara Therapeutics, Inc.
1 Little West 12th Street
New York, New York 10014
(Name and address of agent for service)
(646) 844-0337
(Telephone number, including area code, of agent for service)
Copies to:
Jesse Shefferman
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Ryan S. Sansom, Esq.
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ArTara Therapeutics, Inc.
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Karen E. Deschaine, Esq.
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1 Little West 12th Street
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Cooley LLP
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New York, New York 10014
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4401 Eastgate Mall
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(646) 844-0337
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San Diego, California 92121
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(858) 550-6000
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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o
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Accelerated filer
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o
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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x
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. x
CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount to be
Registered (3)
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Proposed Maximum
Offering
Price per Share (4)
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Proposed Maximum
Aggregate
Offering Price (4)
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Amount of
Registration Fee
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Common Stock (par value $0.001 per share), under the Proteon Plan (1)
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1,048,300 shares
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$
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25.62
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$
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23,058,052
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(5)
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$
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2,993
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(5)
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Common Stock (par value $0.001 per share), under the ArTara Plan (2)
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219,699 shares
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$
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25.62
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$
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5,628,689
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$
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731
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Total
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1,119,701 shares(5)
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$
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28,686,741
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$
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3,724
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(1) Represents (i) 900,002 shares of the registrants Common Stock (the Common Stock) added to the shares authorized for issuance under the Proteon Therapeutics, Inc. Amended and Restated 2014 Equity Incentive Plan, as amended (the Proteon Plan) pursuant to an amendment to such Proteon Plan approved by the registrants stockholders at a special meeting of the registrants stockholders held on January 9, 2020 and (ii) 148,298 shares of Common Stock previously registered by the registrant pursuant to the Proteon Plan on Form S-8s filed with the Securities and Exchange Commission (the SEC) on November 25, 2014 (File No. 333-200587), January 4, 2018 (File No. 333-222415) and January 3, 2019 (File No. 333-229123) (collectively, the Prior Form S-8s). This Registration Statement is also intended to consolidate in one place the registration of 148,298 shares of the registrants Common Stock that were previously registered for offer and sale on the Prior Form S-8s. All share numbers give effect to the 40:1 reverse stock split of the registrants Common Stock that occurred on January 9, 2020.
(2) Represents 219,699 shares of Common Stock reserved for issuance upon exercise of outstanding stock options granted under the ArTara Subsidiary, Inc. 2017 Equity Incentive Plan (the ArTara Plan), which was assumed by the registrant. No additional awards will be made under the ArTara Plan.
(3) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of the registrants Common Stock that become issuable under the Proteon Plan or the ArTara Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction.
(4) This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the registrants Common Stock on January 13, 2020, as reported on the Nasdaq Capital Market.
(5) The registrant previously paid the registration fee for the 148,298 shares of the registrants Common Stock that were previously registered for offer and sale on the Prior Form S-8s and therefore, such shares are not included in the calculations of the proposed aggregate offering price or the amount of registration fee.
EXPLANATORY NOTE
On January 9, 2020, the Delaware corporation formerly known as Proteon Therapeutics, Inc. completed its previously announced merger transaction in accordance with the terms and conditions of the Agreement and Plan of Merger and Reorganization, dated as of September 23, 2019, as amended by Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated November 19, 2019 (the Merger Agreement), by and among Proteon Therapeutics, Inc. (Proteon), ArTara Subsidiary, Inc. (ArTara) and REM 1 Acquisition, Inc., a wholly-owned subsidiary of Proteon (Merger Sub), pursuant to which Merger Sub merged with and into ArTara, with ArTara surviving the merger as a wholly-owned subsidiary of Proteon (the Merger). Additionally, on January 9, 2020, immediately prior to the completion of the Merger, the Company changed its name from Proteon Therapeutics, Inc. to ArTara Therapeutics, Inc. (the Company or the registrant). In connection with the Merger, Proteon assumed the ArTara Plan and all outstanding options granted pursuant to the ArTara Plan in accordance with the terms of the ArTara Plan, which in the aggregate total stock awards for 219,699 shares of Common Stock.
This Registration Statement is being filed for the purpose of registering 900,002 shares of Common Stock added to the shares authorized for issuance under the Proteon Plan pursuant to an amendment to such plan approved by the registrants stockholders at a special meeting of the registrants stockholders held on January 9, 2020. In addition, as indicated above, Proteon previously filed the Prior Form S-8s relating to the Proteon Plan, the contents of which are incorporated herein by reference. This Registration Statement is also intended to consolidate in one place the registration of 148,298 shares of Common Stock that were previously registered for offer and sale on the Prior Form S-8s.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (the DGCL) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. The Companys sixth amended and restated certificate of incorporation (the Certificate of Incorporation) provides for indemnification of its directors and officers, to the maximum extent permitted by the DGCL. In addition, the Company maintains a policy providing directors and officers liability insurance.
Section 102 of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability:
· for any breach of the directors duty of loyalty to the corporation or its stockholders;
· for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
· for acts related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
· for any transaction from which the director derived an improper personal benefit.
The Companys second amended and restated bylaws and Certificate of Incorporation include the right to advancement of expenses; provided, however, that if required by the DGCL, an advancement of expenses incurred by an indemnitee shall be made only upon delivery to the Company of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such indemnitee is not entitled to indemnification for such expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act.
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on January 14, 2020.
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ARTARA THERAPEUTICS, INC.
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By:
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/s/ Jesse Shefferman
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Jesse Shefferman
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jesse Shefferman as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Name
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Title
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Date
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/s/ Jesse Shefferman
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President and Chief Executive Officer and Director
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January 14, 2020
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Jesse Shefferman
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(Principal Executive, Financial and Accounting Officer)
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/s/ Luke Beshar
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Chairman of the Board of Directors
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January 14, 2020
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Luke Beshar
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/s/ Scott Braunstein, M.D.
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Director
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January 14, 2020
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Scott Braunstein, M.D.
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/s/ Roger Garceau, M.D.
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Director
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January 14, 2020
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Roger Garceau, M.D.
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/s/ Richard Levy, M.D.
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Director
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January 14, 2020
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Richard Levy, M.D.
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/s/ Gregory P. Sargen
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Director
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January 14, 2020
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Gregory P. Sargen
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/s/ Michael Solomon, Ph.D.
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Director
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January 14, 2020
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Michael Solomon, Ph.D.
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